Burris v. . Creech

Stacy, C. J. Tbe law as it pertains to a “spite fence” was thoroughly pounded and hammered by tbis Court in Barger v. Barringer, 151 N. C., 433, 66 S. E., 439. Nothing can be added to tbe discussion there bad by Brown and Uolce, JJ., tbe one speaking for tbe majority, tbe other for tbe minority. 'The subject was exhausted in that debate. Tbe case was *304 later distinguished in Bell v. Danzer, 187 N. C., 224, 121 S. E., 448. See 22 Am. Jur., 546; 11 R. C. L., 877; Hornsby v. Smith, 13 S. E. (2d), 20, 113 A. L. R., 684. Without undertaking to thrash over old straw, or “to beat the same old brush with the same old stick to run out the same old rabbit for another chase,” as the late Justice Brogden would say, Meece v. Com. Credit Co., 201 N. C., 139, 159 S. E., 17, perhaps it is enough to observe that the present facts appear to be sufficient to carry the case to the jury on the first issue under authority of the Barger decision, and to warrant an abatement of the nuisance. The complaint follows the definition of a “spite fence,” i.e., that it is of no beneficial use to the owners and was erected and is maintained by them solely for the purpose of annoying the plaintiff. 22 Am. Jur., 546. The answers to the second and third issues are not supported by the record. There is no evidence that the plaintiff has suffered any pecuniary loss or personal discomfort, albeit his tenant may have been annoyed or inconvenienced. True, there is testimony to the effect that the market value of plaintiff’s property has been affected by the fence in question, but this is on the theory of a permanent easement. An abatement of the nuisance would alleviate the damage, and no intervening loss has been established. Moreover, plaintiff’s wife, as one of the tenants by the entirety, wuuld be a desirable, if not a necessary party, where an easement is to pass on the payment of permanent damages. Ho oker v. R. R., 156 N. C., 155, 72 S. E., 210. It is not thought the case is one in which punitive damages should be awarded. Worthy v. Knight, 210 N. C., 498, 187 S. E., 771; 22 Am. Jur., 548. It results, therefore, that the second and third issues will be stricken out and an order of abatement entered on the answer to the first issue. Judgment accordingly. Error and remanded.